Tell The Truth: This Is A Woman's World...

June 28, 2012

So... You Either Have Insurance Or Pay A Tax, But Congress Can't Make The States Offer Affordable Coverage To Poor People?

There will be lots of focus today on the 5-4 upholding of the indvidual mandate, and that's sort of fair: the requirement to have insurance or pay a relatively small fee was the linchpin of a much broader consitutional argument, and that argument, as I suggested earlier this week, remains a non-starter. While Congress may not have the right to "compel" commerce, it does have the power to tax you if you don't show proof of health insurance. It's worth pointing out that 4 Justices would have accepted the Commerce Clause argument, while 4 others would have rejected the tax claims as well. So... basically, only John Roberts thinks that Congress can tax you, but can't regulate commercial inactivity. Or something.

Lost in today's coverage - except, admirably, from Megyn Kelly on Fox - is the 7-2 decision that may yet prove the bigger problem: the Court sharply limited Congressional ability to force the states to expand Medicaid coverage or face the loss of all Medicaid funds. The practical implications of this are still being sorted, but from what I can tell, this could be not only a huge mess for Medcaid recipients, but also for the individual mandate.

Remember, the ACA does about 4 things to make sure that everyone has access to affordable health insurance: most people will get covered by their employers (including ending pre-existing condition limits, lifetime caps, and extended coverage for young people on parent plans to age 26), seniors remain covered by Medicare, people above 133% of poverty but unemployed (or self employed or such) can buy coverage on new "insurance exchanges"... and people at or below 133% of poverty figures were to be covered by Medicaid.

Unfortunately, Medicaid right now isn't budgeted to offer that kind of massive expansion of coverage. So Congress, trying to paper over the problems of adding a huge budget increase did what it usually does when poor people are involved: Congress played math games, pretending that a less than full increase of funding can somehow cover the first five years of the expansion, and then told the states that after the first five years, a large bulk of the expansion would become their budget problem instead.

Let's be clear: Medicaid right now already fails to adequately cover the small number of people in dep poverty it needs to cover. Medicaid expansion doesn't just enormously increase the problems of insuring poor individuals (who, most likely, need healthcare they can't afford now, meaning costs for care will have a large initial spike... but Medicaid is also the insurer of last resort for poor elderly people in nursing homes. By widely exapnding the ability of people to qualify for Medicaid, it's likely that even more elderly people in extended care will need coverage. And for the sunbelt states - most of which were the main parties to this suit - that cost increase could be crippling.

What the Supreme Court said - apparently - is that these states could decide not to expand Medicaid and to refuse the funds tied to the expansion, but still receive their existing Federal Medicaid grants. And it may be, as some theorize, that even with that permission, a number of states will take the extra money and do some sort of expanded offering to their poor citizens. But it's also quite possible that Texas, say, will just refuse to do anything, not lose the limited Medicaid funds it already gets, and leave millions of poor people with no real way to get insurance coverage.

And guess what happens then... under the mandate's tax policy... they owe the tax.

In a sense, Roberts has shown himself to be a more traditional conservative, a more Reagan era appointee than many guessed at the time of his appointment. A product of the Reagan Justice Department, Roberts was part of the first wave of true believers, and his decision - and make no mistake, this ruling is all him; no other Justice or group of Justices agreed with the whole of his opinion - reflects those beliefs. While he makes more allowances for federal power than some far right types would like, he also shows the myopia to policies which make it hardest for people in poverty to change their circumstance, a classic Reagan-era conceit. This is "Welfare Queens" and Bootstrap Logic all over again, and in some ways worse. And the end result is some real mischief, which explains why my sympathies lie most with the angriest Justice: Ruth Bader Ginsburg, who correctly pointed out that health care reform is meaningless if it doesn't help the most vulnerable and in need. Upholding a tax on lack of insurance was never the worst thing this Court could do - the worst thing would be making it harder to make sure poor people never faced that tax.